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Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
DEC 13 2004
PATRICK FISHER
Clerk
No. 03-2088
(District of New Mexico)
(D.C. No. CR-02-84-WJP)
v.
BERNIE BANUELOS,
Defendant-Appellant.
II. BACKGROUND
In December of 2001, a confidential informant told law enforcement agents
that Banuelos and Delilah Ortiz were selling crack cocaine, heroin, and
methamphetamine out of their apartment (the Acoma apartment) in
Albuquerque, New Mexico. The informant introduced Agent Bryan Shields, who
was working in an undercover capacity, to Banuelos. On December 14th, Shields
and Albuquerque Police Detective Gregory Cunningham, who was also working
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Albuquerque and obtained crack cocaine. 2 Banuelos then called Shields and told
him he had two ounces of high quality crack cocaine to sell; he also told Shields
to come to the Acoma apartment. The agents obtained a search warrant and went
to the Acoma apartment. As they approached, someone yelled five-oh, a slang
term for police. Banuelos, who was outside the Acoma apartment, took the crack
cocaine from his pocket, threw it on the ground, and fled. Officers found the two
ounces of crack cocaine discarded by Banuelos on the ground outside the Acoma
apartment. Inside the Acoma apartment, officers found Ortiz and a loaded
revolver.
Banuelos did not testify at trial. Ortiz, however, did testify. She testified
that she helped Banuelos sell crack cocaine and heroin in the Acoma apartment,
and that she had done so for approximately eight months. She further testified
that Banuelos obtained the drugs they sold, took the money from the drug sales,
gave her money to buy groceries, and paid the apartment rent and bills.
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III. ANALYSIS
A.
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then resumed deliberations; approximately two hours and twenty minutes later,
the jury returned a verdict finding Banuelos guilty on all three counts set out in
the indictment.
On appeal, Banuelos argues that the Allen instruction given by the district
court was impermissibly coercive, both because of its content and its timing. This
court examines Allen instructions on a case-by-case basis to determine whether
any given instruction is impermissibly coercive. United States v. Alcorn, 329
F.3d 759, 765 (10th Cir. 2003). Some of the factors this court considers in
making this determination include: (1) the language of the instruction, (2)
(...continued)
that more or clearer evidence could be produced.
If a substantial majority of your number are for a conviction,
each dissenting juror ought to consider whether a doubt in his or her
mind is a reasonable one since it appears to make no effective
impression upon the minds of the others. On the other hand, if a
majority or even lessor number of you are for acquittal, the other
jurors ought to ask themselves again and most thoughtfully whether
they do not have a reason to doubt the correctness of a judgment
which is not shared by several of their fellow jurors and whether they
should distrust the weight and sufficiency of the evidence which fails
to convince several other jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to yield a
conscientious conviction he or she may have as to the weight or
effect of evidence. But, remember also that, after full deliberation
and consideration of the evidence in this case, it is your duty to agree
upon a verdict if you can do so without surrendering your
conscientious conviction. You must also remember that, if the
evidence in the case fails to establish guilt beyond a reasonable
doubt, the accused should have your unanimous verdict of not guilty.
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whether the instruction is presented with other instructions, (3) the timing of the
instruction, and (4) the length of the jurys subsequent deliberations. Id.
(quotation omitted).
Banuelos argues that the Allen instruction given by the district court was
unduly coercive because it referred to the expense of a trial and possible retrial.
This court has, however, previously approved Allen instructions containing
similar language. See, e.g., United States v. Reed, 61 F.3d 803, 805 & n.5 (10th
Cir. 1995); United States v. Rodriguez-Mejia, 20 F.3d 1090, 1091 (10th Cir.
1994). In fact, the Allen instruction at issue here is in every material way
identical to the instruction given in Reed. In Reed, this court described this
particular version of an Allen instruction as follows: The Allen charge eventually
given was evenhanded; it did not presume that the majority favored a guilty
verdict; and it emphasized that no juror was expected to yield a conscientious
conviction on the evidence. Reed, 61 F.3d at 805. If anything, the Allen
instruction given in this case was weighted against the prosecution. The district
court urged the jurors who had favored acquittal to reconsider their views only if
a substantial majority favored conviction. On the other hand, it asked those
jurors who favored conviction to reconsider their views if a majority or lessor
number were for acquittal. Thus, in essence, the district court asked the jurors
who were for acquittal to reconsider only if there were a substantial majority for
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conviction, but asked all jurors who were for conviction to reconsider.
Furthermore, the instruction twice stated that no juror was expected to yield a
conscientious conviction and specifically reminded the jury that if the evidence
in the case fails to establish guilt beyond a reasonable doubt, the accused should
have your unanimous verdict of not guilty. In these circumstances, this court has
no difficulty concluding that the wording of the Allen instruction given by the
district court was not impermissibly coercive. See Reed, 61 F.3d at 805;
Rodriguez-Mejia, 20 F.3d at 1091-92; United States v. McKinney, 822 F.2d 946,
950-51 (10th Cir. 1987).
Banuelos argues that notwithstanding the wording of the Allen instruction,
the jurys relatively short period of deliberation after the giving of the instruction
suggests coercion. This court recognizes that a jury returning with a verdict
soon after receiving an Allen charge suggests the possibility of coercion.
United States v. Arney, 248 F.3d 984, 990 (10th Cir. 2001). It must be noted,
however, that there is no per se rule regarding the amount of time a jury takes to
reach a verdict after having received an Allen instruction. See, e.g., Arney, 248
F.3d at 990 (concluding there was no coercion where verdict reached one hour
after receiving instruction); Reed, 61 F.3d at 804-05 (same); McKinney, 822 F.2d
at 950 (concluding there was no coercion where verdict reached on twenty-nine
counts in one hour and twenty minutes after receiving instruction); Munroe v.
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United States, 424 F.2d 243, 246-47 (10th Cir. 1970) (en banc) (concluding there
was no coercion where verdict reached forty minutes after receiving instruction).
In any event, the amount of time spent by the jury deliberating in this case after
the giving of the instruction most certainly does not support an inference of
coercion. In this case, the jury deliberated almost as long after receiving the
instruction (two hours and twenty minutes) as it did before reaching impasse
(three hours).
Finally, Banuelos agues that the giving of the Allen instruction in this case
after the jury had begun deliberating and reached an impasse rendered the charge
unduly coercive. It is certainly true that this court has repeatedly expressed a
preference that Allen instructions be given along with all other jury instructions
and before the jury has reached an impasse. See, e.g., Arney, 248 F.3d at 989;
United States v. Smith, 857 F.2d 682, 684 (10th Cir. 1988); Munroe, 424 F.2d at
246. There is, however, no per se rule against the giving of an Allen instruction
under circumstances such as in this case. See Arney, 248 F.3d at 989. In light of
the even-handed nature of the Allen instruction given by the district court and the
length of the jurys deliberations after the giving of the charge, this court
concludes that the timing of the instruction did not render it unduly coercive.
Accordingly, this court concludes that the district court did not err in giving the
Allen instruction at issue in this case.
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B.
the defense of entrapment. The district court denied Banuelos request for an
entrapment instruction on the ground that theres been insufficient evidence
presented for the jury to find in the defendants favor on an entrapment theory.
[W]hether there is evidence sufficient to constitute a triable issue entrapment is a
question of law subject to de novo review. United States v. Ortiz, 804 F.2d
1161, 1164 (10th Cir. 1986).
This court has summarized the defense of entrapment and the showing a
defendant must make to be entitled to such an instruction as follows:
The entrapment defense exists to protect an otherwise
unpredisposed defendant from governmental coercion[,] . . . rais[ing]
the issue of whether the criminal intent originated with the defendant
or with government agents. [Ortiz, 804 F.2d at 1165] A defendant
is entitled to an entrapment instruction whenever there is sufficient
evidence from which a reasonable jury could find entrapment.
Mathews v. United States, 485 U.S. 58, 62, 108 S. Ct. 883, 99
L.Ed.2d 54 (1988). For the purposes of determining the sufficiency
of the evidence to raise the jury issue, the testimony most favorable
to the defendant should be accepted. United States v. Reyes, 645
F.2d 285, 287 (5th Cir. 1981); see also Ortiz, 804 F.2d at 1164. The
defendant must show, either by presenting his own evidence or by
pointing to evidence presented by the government in its case-in-chief,
his lack of predisposition to commit the crime and government
involvement and inducement. Ortiz, 804 F.2d. at 1164-65. [Where a
defendant] did not present a defense, we must examine the
governments evidence to determine whether sufficient facts existed
to support an entrapment instruction.
United States v. Scull, 321 F.3d 1270, 1275 (10th Cir. 2003).
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This court concludes that because Banuelos failed to identify evidence upon
which a jury could conclude that government agents induced him to sell crack
cocaine, 5 the district court did not err in refusing to instruct the jury on the
question of entrapment. Before the district court, Banuelos asserted that because
the government agents targeted him, an entrapment instruction is appropriate. He
repeats that same assertion on appeal. See Appellants Brief at 6 (The evidence
established that the government targeted Mr. Banuelos. The government
approached Mr. Banuelos without invitation and encouraged him to sell crack
cocaine.). As this court has made clear, however, [e]vidence that a government
agent solicited, requested or approached the defendant to engage in criminal
conduct, standing alone, is insufficient to constitute inducement. Inducement also
will not be shown by evidence that the government agent initiated the contact
with the defendant or proposed the crime. Ortiz, 804 F.2d at 1165 (citation
omitted). In fact, as set out above, when the agents first approached Banuelos he
had crack cocaine to sell. The quality was so inferior, however, that the agents
feared that their cover would be blown if they purchased the crack cocaine.
Accordingly, the agents purchased $1200 worth of heroin instead. Because
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firearm, was possessed in connection with a drug offense, the defendants offense
level is to be increased by two levels. The adjustment should be applied if the
weapon was present, unless it is clearly improbable that the weapon was
connected with the offense. U.S.S.G. 2D1.1, cmt. n.3; United States v.
Humphrey, 208 F.3d 1190, 1210 (10th Cir. 2000) (quoting application note).
The initial burden is on the government to prove possession of the weapon by a
preponderance of the evidence, which may be satisfied by showing mere
proximity to the offense. Humphrey, 208 F.3d at 1210 (quotation omitted).
After the government has met this burden, a defendant can still avoid the
enhancement if he can prove that it is clearly improbable that the weapon was
connected to the offense. Id.
The entirety of Banuelos argument regarding the propriety of the
2D1.1(b)(1) adjustment is the following: The government failed to meet its
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burden. Furthermore, Mr. Banuelos has shown that it is clearly improbable that
the weapon was connected to the offense. Appellants Brief at 7. This argument
is clearly insufficient. See Fed. R. App. P. 28(a)(9)(A) (providing that an
appellants brief must contain appellants contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies); Bailey v. Big Sky Motors, Ltd. (In re Ogden), 314 F.3d 1190, 1197 n.4
(10th Cir. 2002) ([W]e are reluctant to consider arguments that do not contain
legal support for their contentions.). Nevertheless, we proceed with the
discussion of this issue only [t]o avoid any appearance that we are sacrific[ing]
substantive justice on the altar of administrative convenience. Bailey, 314 F.3d
at 1197 n.4 (quoting LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 922 (7th Cir.
1997)). 6
In his objection to the Presentence Investigative Report, Banuelos simply
asserted that the gun found in the Acoma apartment was not his and that there was
no evidence that he had ever used or handled the gun. Banuelos argued that
because the government had failed to prove that he had ever handled,
brandished[,] or used the gun, the 2D1.1(b)(1) adjustment was not proper.
Although this court will proceed to the merits of this issue, we specifically
admonish counsel for his failure to comply with Fed. R. App. P. 28(a)(9)(A).
6
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living room. The revolver was in a soft gun case, which is what the
confidential source had identified. And then, of course, there was
cocaine inside the apartment, and the jury convicted Mr. Banuelos
with possession of the cocaine and intent to distribute it.
Under [Tenth Circuit precedent], the United States has met its
burden in terms of the spatial and proximity requirements; therefore,
I agree with Probation and the United States that the two-level
enhancement for possession of a weapon under Sentencing Guideline
2D1.1(b)(1) is appropriate. . . .
On appeal, this court reviews the district courts interpretation of
2D1.1(b)(1) de novo and [its] underlying factual findings for clear error.
United States v. Dickerson, 195 F.3d 1183, 1188 (10th Cir. 1999). It is absolutely
clear that the district court employed the correct legal standard in analyzing
whether Banuelos was subject to the two-level adjustment set out in
2D1.1(b)(1). Furthermore, the district courts factual findings are wellsupported in the record and, therefore, are not clearly erroneous. As noted by the
district court, the government carried its initial burden of demonstrating Banuelos
possessed the firearm by demonstrating that Banuelos controlled the Acoma
apartment and by showing the proximity of the weapon to the offenses of
conviction. The burden thus shifted to Banuelos to demonstrate that the firearm
was not connected to the drug trafficking activities. Because he utterly failed to
carry that burden, this court concludes that the district court properly applied the
two-level adjustment set out in 2D1.1(b)(1).
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D.
leader, manager, or supervisor in any criminal activity [not involving more than
five people or otherwise extensive], increase [defendants offense level] by 2
levels. The district court increased Banuelos offense level by two levels
pursuant to 3B1.1(c), concluding that Banuelos supervised Ortiz. On appeal,
Banuelos asserts that the district court erred in applying 3B1.1(c) because the
evidence at trial demonstrated that he and Ortiz were in a romantic relationship
and were equal partners in the distribution scheme.
In concluding that Banuelos was subject to the two-level upward
adjustment set out in 3B1.1(c), the district court found that Banuelos controlled
the distribution of drugs. In particular, the district court found that Banuelos and
Ortiz sold drugs together from the Acoma Apartment. Ortiz testified at trial that
Banuelos would get the drugs ready for me in the morning, would call my cell
phone, and I would meet the customers. Banuelos obtained the drugs and kept
the proceeds of the drug sales. Banuelos paid all the bills, including the rent on
the Acoma apartment. Based on these facts, the district court concluded that
Banuelos was a supervisor as that term is defined in United States v. Backas, 901
F.2d 1528 (10th Cir. 1990).
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E.
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IV. CONCLUSION
For those reasons set out above, the judgment of conviction entered and the
sentence imposed by the United States District Court for the District of New
Mexico are hereby AFFIRMED. Banuelos appeal of the district courts refusal
to depart downward from the applicable sentencing range is DISMISSED for lack
of appellate jurisdiction.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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